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1998 DIGILAW 602 (KER)

Santhoshkumar v. Kareem

1998-12-11

D.SREEDEVI, P.A.MOHAMMAD

body1998
Judgment :- P.A. Mohammed, J. These batch of appeals are from the common award dated 20th July, 1989 passed by the Additional Motor Accidents Claims Tribunal, Ernakulam. The claimants in motor accident claims are the appellants. The main contesting respondent in these appeals is the New India Assurance Co. Ltd., Ernakulam, the insurer of the offending vehicle involved in the accident which occurred on 13.9.1986. The appellants sustained injuries in the above accident and therefore, filed the claim petitions before the Tribunal claiming compensation under S.110A of the Motor Vehicles Act, 1939 (for short' the Act'). The Tribunal after enquiry awarded the compensation to all claimants but the insurance company was absolved from indemnifying the owner of the vehicle. The claimants being aggrieved by the aforesaid decision of the Tribunal filed these appeals. 2. The claim petition Nos., Appeal Nos., Compensation claimed and compensation awarded are tabulated hereunder : 3. The dispute involved in these appeals mainly relates to the coverage of Ext. B1 policy. On behalf of the appellants it was contended that the finding of the Tribunal that the injured were the passengers carried by the lorry and so they were not covered by Ext. B1 policy was faulty and unsustainable in law. On the other hand the counsel for the insurance company submitted that the policy in question is an 'act only' policy and there was no liability to pay compensation for the passengers carried by the lorry in as much as no additional premium was collected. 4. In view of the above rival contentions we have perused the Ext. B1 policy dated 30.11.1986 issued by the New India Assurance Co. Ltd. in respect of lorry KLM1353. It is there from revealed that the policy in question is 'Commercial Vehicles Comprehensive Policy' as described in second page of Ext. B1. Though additional premium was not collected a sum of Rs. 240/- had been collected towards premium for liability to public risk. No doubt this is a statutory policy as required under S.94 of the Act. It is provided in the policy that the limit of the amount of the company's liability under S. II-1(i) in respect of any one accident is the amount as is necessary to meet the requirements of the Act. This is what is provided in S.95(2)(b)(i), namely Rs. 50,000/-. It is provided in the policy that the limit of the amount of the company's liability under S. II-1(i) in respect of any one accident is the amount as is necessary to meet the requirements of the Act. This is what is provided in S.95(2)(b)(i), namely Rs. 50,000/-. Even though no additional premium is collected, the company is liable to this amount provided in the above section. There is no case for unlimited liability and therefore, payment of additional premium has no relevancy. What is claimed is only statutory liability to the extent of Rs. 50,000/-. The total amount of compensation awarded by the Tribunal in all these case does not exceed Rs. 50,000/- and therefore, we need not go into the question of non-collection of additional premium. 5. In a recent case, the Supreme Court has dealt with a question as to the liability of the insurer to pay compensation to an occupant of a car who is gratuitously travelling in a car. The question was whether the expression' any person' contained in S.11(1)(a) of the policy would include an occupant of the car. This question has been decided by the Supreme Court in Amrit Lai Sood & Ann v. Smt. Kaushalya Devi Thapar & Ors. (AIR 1998 SC 1433). There the Supreme Court after analysing S.11(1)(a) of the policy observed: "Thus under S.11(1)(a) of the policy the insurer has agreed to indemnify the insured against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to "any person'. The expression "any person' would undoubtedly include an occupant of the car who is gratuitously travelling in the car. The remaining part of the clause (a) relates to cases of death or injury arising out of and in the course of employment of such person by the insured. In such cases the liability of the insurer is only to the extent necessary to meet the requirements of S.95 of the Act. In so far as gratuitous passengers are contained there is no limitation in the policy as such. Hence under the terms of the policy, the insurer is liable to satisfy the award passed in favour of the claimant." 6. In the present case, the passengers carried by the vehicle are not gratuitous passengers. In so far as gratuitous passengers are contained there is no limitation in the policy as such. Hence under the terms of the policy, the insurer is liable to satisfy the award passed in favour of the claimant." 6. In the present case, the passengers carried by the vehicle are not gratuitous passengers. It has come out in evidence that the passengers were carried in the vehicle in pursuance of a contract entered with the owner of the vehicle. The District Collector, Ernakulam chartered the lorry for the purpose of carrying these persons for performance in connection with Onam festival celebration under the auspices of the Government. The performance was arranged by'Viswalekha Arts Club'. Thus it was clear that the passengers were carried by the vehicle in pursuance of a contract of employment and hence S.95(2)(b)(i) would apply. 7.The Supreme Court in Amrit Lai Sood's case supra was considering the relevant clause in the policy that is to say, S. II -'Liability to Third Parties'. The Ext. B1 policy contains a similar clause which is reproduced hereunder: "SECTION II - LIABILITY TO THIRD PARTIES 1. Subject to the Limits of Liability the Company will indemnify the insured against all sums including claimant's cost and expenses which the insured shall become legally liable to pay in respect of (i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the Motor Vehicle". Therefore, the interpretation to the identical clause made by the Supreme Court is squarely applicable in the present case. Therefore, we are of the view that insurance company is liable to be the extent necessary to meet the requirements of S.95 of the Rs. 50,000/-, the insurance company is liable to indemnify the owner of the vehicle in respect of the entire compensation awarded by the Tribunal. 8. In view of the discussion hereinabove, we set aside the finding in the common award that the passengers carried by the lorry are not covered by the policy and hence the insurer is not liable to indemnify the owner of the vehicle. Accordingly, we modify the impugned award of the effect that the insurance company is liable to indemnify the owner of the vehicle in respect of the compensation awarded by the Tribunal to all the claimants. The appeals are allowed to the extent incidental above. Accordingly, we modify the impugned award of the effect that the insurance company is liable to indemnify the owner of the vehicle in respect of the compensation awarded by the Tribunal to all the claimants. The appeals are allowed to the extent incidental above. No order as to costs.